IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon’ble Justice Debi Prosad Dey
CRA 434 of 2015
Sk. Disco @ Sk. Afsar…………Appellant
Vs.
The State of West Bengal……Respondent
For the Appellant : Mr. Debabrata Acharyya
For the State : Mr. Ayan Basu
Heard on : 15.11.2017,07.12.2017,11.01.2018
Judgment on :12.01.2018
Debi Prosad Dey, J. :-
Challenge in this appeal is the order of conviction and sentence passed by
learned Additional Sessions Judge, 17th Court, Alipore, South 24 Parganas on the
ground that learned trial Court could not appreciate the evidence on record and
that the charge was not properly framed and the dying declaration of the victim
was not even corroborated by any other witness. The case of the prosecution is
that the wife of the appellant sustained burn injuries on her person and she was
taken to Bangur Hospital at the outset and thereafter to Chittaranjan Hospital,
Park Circus. The appellant even misbehaved with the family members of his wife
and others and accordingly Jadavpur Police Station Case no. 653 of 2008 dated
3rd November, 2008 under Section 498A/326/307 of the Indian Penal Code was
started against the appellant and other family members. However, charge sheet
was submitted under Section 498A/306 of the Indian Penal Code since the wife
of the appellant expired during the pendency of the case. Charge under Section
498A/34 of the Indian Penal Code and 306/34 of the Indian Penal Code was
framed against the present appellant. On scrutiny of the contents of the charge I
find that learned trial Court has properly framed a charge giving in detail about
the occurrence and the involvement of the present appellant. Prosecution
witness no. 1 Afjal Hossain came to know about the occurrence and he is not an
eye witness of the occurrence. However, it transpires from the evidence of
prosecution witness no. 1 that another criminal case is pending against the
appellant. Prosecution witness no. 2 Sk. Afsar alias Manoj also did not state
anything and he has been declared hostile by the prosecution. Prosecution
witness no. 3 Amina Bibi is the full sister of the deceased and she came to know
from the deceased that at the behest of her husband, the deceased sustained
such burn injuries on her person. She has proved her signature on some paper
vide exhibit 1. Except suggestion there is nothing on record to show that witness
no. 2 was deposing falsely. It transpires from her cross examination that Sk.
Muslim another accused used to reside in a separate mess. Prosecution witness
no. 4 Guria Khatun specifically stated that she came to know from the deceased
during her stay in Chittaranjan Hospital that her husband had doused her with
kerosin and had put her on fire and thereby the deceased sustained such burn
injury. Curiously enough except some suggestions there is nothing in the cross
examination of prosecution witness no. 4 to disbelieve her. This witness has also
proved the written complaint vide exhibit 4. Prosecution witness no. 5 Halima
Bewa has supported the case of prosecution in minute details and she has
proved the marriage certificate of the appellant vide exhibit 2. The entire
examination of chief of the witness virtually remains unshaken and nothing has
been elicited in the cross examination of this witness. Prosecution witness no. 6
lady Sub Inspector of police Sukla Karmakar could not say anything about the
occurrence and her evidence may safely be discarded. Prosecution witness no. 7
Dr. Amitava Das held post mortem examination over the dead body of victim and
as per his opinion death was caused due to the effects of septic absorption from
infected ulcers resulting from burn injuries as noted in the post mortem
examination report vide exhibit 3. The cause of death also remains
unchallenged. Dr. Dhananjoy Dhara prosecution witness no. 8 was posted in
National Medical College on 3rd November, 2008 and on that date he recorded
dying declaration of Sakila Bibi in presence of A.S.I. Anathbandhu Biswas of
Beniyapukur police station, Pranati Saha, S.I. of Jadavpur police station, S.I.
Sudhunshu Biswas of Jadavpur police station. The doctor has specifically stated
that at the time of recording such statement the patent was mentally alert and
was competent enough to give her statement. The dying declaration has been
marked exhibit 4. The cross examination of this witness does not reveal any
doubt about the autheticity and veracity of such dying declaration of the
deceased. Prosecution witness no. 9 exhibited the documents collected during
investigation and submitted charge sheet against the accused persons. She is a
formal witness. There is nothing in the evidence of prosecution witness no. 9 to
raise any sort of suspicion with regard to the manner and mode of investigation.
The appellant has simply denied the occurrence and the dying declaration of the
deceased during his examination under Section 313 of the Code of Criminal
Procedure and had not adduced any evidence.
Learned Advocate appearing on behalf of the appellant contended that the
framing of charge has not been properly conducted by learned trial Court and as
such the entire case of the prosecution ought to be viewed with suspicion. It is
further submitted that the dying declaration has not been properly recorded by
the doctor and learned trial Court ought to have discarded such dying
declaration.
Learned Advocate for the appellant drew the attention of the Court with
regard to the evidence on record and contended that the witnesses were not
present at the time of alleged occurrence and they should not be relied on.
Learned Advocate for the State contended that the examination in chief of the
principal witnesses remain unshaken and except giving some suggestions, there
is nothing in such evidence to show that the witnesses were deposing falsely.
Secondly, the dying declaration has been properly recorded by the doctor and the
doctor has specifically given a certificate that the victim was competent enough to
make such statement before the doctor.
Exhibit 4 is the dying declaration and it appears from exhibit 4 that the
doctor has specifically given a certificate with regard to the competency of the
deceased to make such statement. It is apparent from such dying declaration
that the appellant was sceptial about the chastity of the deceased and that is why
in order to test the chastity of the deceased, the appellant told the deceased to
pour kerosin oil on her person and to set her on fire. Pursuant to such direction
of the appellant the deceased had poured kerosin oil on her person and set her
on fire. At that time the appellant supplied the match box to the deceased and
thereafter the deceased lighted the match stick and had put her on fire. The
moment, the deceased started burning, the appellant left the place and no one of
his house took the injured to the hospital. Later on local people took the injured
to the hospital and her husband followed the said people. It is therefore
apparent that the appellant instigated his wife to pour kerosin oil on her person
and he supplied the match box to his wife so that she could set her on fire at the
dictation of her husband. Accordingly, his wife followed the instruction of her
husband and sustained severe bun injuries. The instigation to commit suicide is
apparent on the face of the record and such clinching evidence of exhibit 4 is
enough to come to a definite conclusion that appellant had instigated the
deceased to commit suicide by burning herself. Moreover, the other witnesses
have also stated that the wife of the appellant was subjected to torture during her
stay in the house of the appellant.
Learned trial Court after considering the facts and circumstances of this
case and taking into consideration such faithful dying declaration of the
deceased has convicted the present appellant for the offence under Section 306 of
the Indian Penal Code but simultaneously acquitted another accused Sk.
Muslim.
In the premises set forth above I find no reason to interfere with the
judgment and order of conviction delivered by learned trial Court. In the result
the appeal fails. The judgment and order of conviction dated 27th June, 2014
and 30th June, 2014 delivered by learned Additional Sessions Judge, 17th Court,
Alipore in sessions trial no.2(9) of 2012 arising out of sessions case no. 49(4) of
2009 are hereby affirmed.
Let a copy of this judgment along with the lower Court record be
forwarded to the trial Court for information and necessary compliance.
Urgent photostat certified copy of this order, if applied for, be given to the
parties as expeditiously as possible.
(Debi Prosad Dey, J.)