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Sk. Disco @ Sk. Afsar vs The State Of West Bengal on 12 January, 2018

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.)

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