Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Joymalya Bagchi

The Hon’ble Justice Ravi Krishan Kapur

C.R.A. 619 of 2013

Anna Das Biswas
-vs-
The State of West Bengal

For the Appellant : Mr. Ranadeb Sengupta,
Mr. Advocate on record,

For the State : Mr. Neguive Ahmed,
Ms. Zareen N. Khan

Heard on : 14.01.2019

Judgment on : 14.01.2019

Joymalya Bagchi, J.:

The appeal is directed against the judgment and order dated 30.06.2011 passed

by the learned Judge Special Cum-Additional Sessions Judge, Cooch Behar in S.T. no.

4A(2) of 2003 arising out of Sessions Case No.128/2002 convicting the appellant for

commission of offence punishable under Sections 498(A)/306 of the Indian Penal Code

and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of

Rs10,000/- in default to suffer imprisonment one year more for the offence punishable

under Section 306 of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for three years and to pay a fine of Rs.5,000/- in default to suffer further
imprisonment for six months for the offence punishable under Section 498(A) of the

Indian Penal Code, both the sentences run concurrently.

Prosecution case, as alleged, against the appellant and co-accused persons is to

the effect that the victim was married to the appellant two years prior to the incident.

After the marriage, she was subjected to mental and physical torture by the appellant

and other in-laws over demands of dowry. On 22.03.98 at around 10 A.M. the appellant

at the instigation of other in-laws poured kerosene oil on the body of the victim and set

her on fire. She was shifted to Jalpaiguri Sadar Hospital. Over the incident, written

complainant was lodged by P.W.1, father of the victim against the appellant and other

in-laws, namely, Dinawari Biswas (mother-in-law), Smt. Sarani Biswas (sister-in-law)

and Shantia Biswas (husband of the sister-in-law) being Haldiabari P.S. Case No.19.98

dated 23.03.98 under Section 498(A)/307/109 of the Indian Penal Code. In the hospital

the dying declaration of the victim was recorded by P.W.12, Sub-divisional Officer.

Victim died on 26.03.98. In conclusion of investigation, charge sheet was filed in the

instant case under Sections 498(A)/304B/109 of the Indian Penal Code against the

appellant and other in-laws.

The case was committed to the court of sessions and transferred to the court of

learned Judge Special Cum-Additional Sessions Judge, Cooch Behar for trial and

disposal.

Charge was framed under sections 498A/304B IPC. The accused persons pleaded

not guilty and claimed to be tried.

In the course of trial, the prosecution examined 15 witnesses to establish its case

and exhibited a number of documents.

The defence of the appellant and other accused persons was one of innocence and

false implication.
In conclusion of trial, the trial court by the impugned judgment and order dated

30.06.11

convicted and sentenced the appellant, as aforesaid. By the selfsame judgment

and order, the co-accused persons, namely, Dinawari Biswas (mother-in-law), Smt.

Sarani Biswas (sister-in-law) and Shantia Biswas (husband of the sister-in-law) were

acquitted of the charges levelled against them.

Mr. Sengupta, appearing for the appellant argued that there is no evidence that

the appellant had abetted the suicide of the victim. Prosecution case as narrated in the

first information report was given a complete go by in the purported dying declaration of

the victim. There is no allegation of torture for or in connection with dowry in the dying

declaration. Evidence on record does not satisfy the ingredients of the offence

punishable under section 498A of the IPC. Original dying declaration was not produced

in court. Doctor who gave the certificate of fitness of the victim has not been examined.

Hence, the dying declaration ought not to have been relied upon. Accordingly, the

appellant is liable to be acquitted.

Mr. Ahmed, learned counsel appearing on behalf of the State argued that the dying

declaration of the victim was recorded by the Sub-divisional Officer, Jalpaiguri, Sadar.

Photocopy of the dying declaration duly attested by the witness has been exhibited as

secondary evidence since the original was untraceable. P.W.12 enquired with regard to

the fitness of the victim from the treating doctor who endorsed his satisfaction in the

dying declaration in her presence. Hence all the pre-requisites for recording dying

declaration were duly satisfied. From the dying declaration it appears that the appellant

had an illicit relation with one Laxmi and over such issue there was an altercation

between him and the victim. He poured kerosene oil on the body of the victim and tried

to set her on fire. Due to such instigation the victim set herself on fire. Other evidence on

record corroborate the dying declaration in all material particulars. Hence, the appeal is

liable to be dismissed.

Prosecution evidence in the instant case is based on the deposition of the relation

of the victim being P.W.1 (father of the victim, an informant), P.W.2 (mother of the

victim), P.W.8 (uncle of the victim).

P.W.1, Jharia Das deposed the victim was married to the appellant two years prior

to the incident. The incident occurred in 1998. The appellant had an illicit relation with

another girl. Victim was physically assaulted by the appellant when she raised protest

over such issue. Appellant also demanded money from the victim. As he was unable to

meet such demands, victim was assaulted by the appellant and other in-laws. On the

date of occurrence one Rabin Saha, a neighbour from the matrimonial home of the

victim informed him that the victim suffered burn injury. Rabin Saha admitted the

victim at Jalpaiguir District Hospital. On getting information, P.W. 1 rushed to his

daughter. His daughter was in her senses and was talking. She stated that her husband

poured kerosene oil on her body and set her on fire. She died at hospital after 4/5 days.

He lodged complaint at Haldibari P.S. He put his LTI on the complaint.

In cross-examination, he stated that six months prior to the occurrence his

daughter had given birth to a child. Unfortunately, the baby died after her birth. His

daughter used to lament the loss of her baby.

P.W.2, Kanan Das is the mother of the victim and has corroborated the version of

P.W.1.

In cross-examination, she stated that she had not been interrogated by the

investigating agency.

P.W.8, Ramesh Roy, relation of the victim who has corroborated the evidence of

the aforesaid witnesses.

P.W.3, Tamjuddin P.W.4, Dhiren Roy are the neighbours of P.W.1. Both of them

deposed that victim was set on fire at her matrimonial home by her husband and other

accused persons.

P.W.5, Rabindra Nath Saha P.W.6, Gautam Dutta have been declared hostile.

P.W.5 deposed that on the date of occurrence at 11 A.M./12 noon he heard a hue

and cry. He came out from the house and found the victim was lying in front of a public

well and her wearing apparels were being changed by local people. She had severe burn

injuries on her person. She was taken to Haldibari hospital and thereafter shifted to

Jalpaiguri hospital. She told him to inform her parents. Accordingly, he informed her

father (P.W.1).

P.W 6 claimed that the victim had suffered burn injuries at her matrimonial

home.

P.W. 7, Goutam Saha was a witness to seizure of burnt cloths from the house of

the appellant. He signed on the seizure list. He deposed that the victim had suffered

burn injuries at her matrimonial home.

P.W 12 was the sub-divisional officer of Jalpaiguri Sadar at the time of the

incident. Upon receipt of requisition she came to the hospital and recorded dying

declaration of the victim (Ext. 6). Prior to recording the dying declaration, she asked the

attending doctor whether the victim was physically and mentally fit and conscious to

make statement. Doctor replied in the affirmative and appended a note in the dying

declaration. Thereafter, she proceeded to record the dying declaration. She took the LTI

of the patient on the declaration. She proved the carbon copy of the original document

duly attested by her as the original was untraceable. The said document was admitted

as secondary evidence in terms of section 65 of the Evidence Act.

P.W 13 was the autopsy doctor. He proved the post mortem report and deposed

that the victim had died due to shock and hemorrhage as a result of burn injury, ante

mortem in nature.

P.W 14 was the scribe of the FIR lodged by P.W 1 and P.W 15 held inquest over the

dead body of the victim after her death on 26.3.1998. He proved the inquest report (Ext

9). P.Ws 9, 10 and 11 are the investigating officers in the instant case.

From the evidence on record, I find it has been proved beyond reasonable doubt

that the victim was married to the appellant and had suffered burn injuries at her

matrimonial home on 22.3.1998. While P.Ws 1, 2, 3, 4 and 8 claimed that the victim had

told them in the hospital that she had been set on fire by the appellant and other in-

laws, in the written dying declaration (Ext. 6) recorded by P.W 12 she stated that there

was an altercation between herself and the appellant over the issue of illicit relation

between the appellant and one lady, namely Lakhsmi. In the course of altercation the

appellant had doused her in kerosene oil and tried to set her on fire. At that time, she

herself set her on fire. In the face of the written dying declaration recorded by a

responsible public servant, that is, sub-divisional officer, the trial judge did not rely on

the oral dying declaration of the victim as narrated by her relations, namely, P.Ws 1, 2,

8 and other witnesses, P.W 3 and 4. Such analysis of evidence on the part of the trial

judge, in my considered opinion, is just and reasonable and does not call for

interference.

However, learned counsel for the appellant has seriously criticised the written

dying declaration on a number of scores. It is argued that the original document was not

produced in court and a carbon copy was illegally admitted into evidence. The said copy

was attested on 25.3.1998 although the dying declaration had been recorded three days
ago on 22.3.1998. It is also submitted that the doctor who treated the patient and

endorsed the certificate has not been examined.

I have given anxious consideration to the aforesaid objections raised on behalf of

the appellant. Objection with regard to admissibility of the attested photocopy of the

dying declaration is of little substance. It has come on record that the original dying

declaration kept in the office of the sub-divisional officer, Jalpaiguri was not traceable in

the said office. Hence, the attested photocopy of the dying declaration was produced in

court and correctly treated as secondary evidence in terms section 65 of the Evidence

Act. It has also been argued that the attestation of the photocopy was belatedly made on

25.3.1998 although the dying declaration was recorded on 22.3.1998.

I have gone through the evidence of P.W 1 in extenso. No challenge has been

thrown to the presence of P.W 12 at the hospital on 22.3.1998 when she recorded the

dying declaration. After recording the dying declaration, a photocopy of the said

document was prepared in her office and the same was duly attested by her which is

dated 25.3.1998. P.W. 12 handed over the attested photocopy of the dying declaration

to. I.O. and the original was kept on record. At the time of trial (which was held in 2010,

after about 12 years) the original document was untraceable and hence, the duly

attested photocopy was accepted as secondary evidence. The procedure adopted by P.W

12 is neither unnatural nor opposed to normal human conduct. Attestation of the

photocopy of the dying declaration after two days does not impinge on the reliability and

authenticity of the document which was recorded by P.W 12 in the course of discharge of

official duties at the hospital on 22.3.1998. Finally, it has been argued that the

attending doctor who gave certificate of fitness has not been examined. Failure to

examine the attending doctor in the facts of the instant case does not affect its

credibility. P.W 12 in her deposition categorically stated she had enquired of the

attending doctor with regard to the consciousness and the mental fitness of the victim
prior to recording her statement. The attending doctor gave his affirmation and duly

made an endorsement in the presence of the said witness. Hence, the endorsement of

the treating doctor which was made in the presence of P.W 12 has been duly proved by

her. In these circumstances, I am of the opinion prosecution has been able to prove that

the written dying declaration was duly recorded by the sub-divisional officer, P.W 12

after the certificate of fitness with regard to the consciousness and the capacity of the

victim to make such statement was duly endorsed by the treating doctor in her presence.

All the formalities and requisites for recording a valid dying declaration are satisfied.

Perusal of the dying declaration also gives an impression that the victim had narrated

the incident in an honest and bona fide manner. She did not make all her in laws

responsible for her misfortune. She admitted that she had herself set her on fire and not

her husband. The manner in which the dying declaration (Ext 6) was recorded in the

instant case and its tenor inspires confidence that it is an honest and truthful rendition

of the incident resulting in death of the victim. There was a quarrel between the couple

over an illicit relation between the appellant and another lady. In the course of quarrel

the appellant tried to set her on fire by dousing her in kerosene oil. Due to such conduct

on the part of the appellant, the victim instigated to self immolate herself. Evidence has

also come on record that over such issue the appellant had subjecting the victim to

mental and physical torture. The aforesaid factual backdrop clearly shows the intention

of the appellant to incite the victim to kill herself.

I am unwilling to accept the suggestion made on the part of the appellant that the

victim may have committed suicide as she was depressed due to the untimely death of

her child in the light of the clear and unequivocal motive disclosed by the her in the

dying declaration. I find no substance in such submission advanced by the appellant.

In these circumstances, I am of the considered opinion that the appellant had subjected

the victim to mental and physical torture over an illicit relationship between himself and
another lady. He tried to kill her and under such extreme circumstances the victim was

induced to commit suicide. Hence, I am inclined to uphold the conviction recorded

against the appellant on the aforesaid counts.

Coming to the issue of sentence, while upholding the sentence imposed on the

appellant for the charge under section 498A IPC, I modify the maximum sentence

imposed on the appellant for the charge under section 306 IPC and direct that he shall

suffer rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/- in default

to suffer imprisonment for further term of one year for committing offence under section

306 IPC.

With the aforesaid modification as to sentence, the appeal is disposed of.

Period of detention suffered by the appellant during investigation, enquiry and

trial shall be set off from the substantive sentence imposed upon him in terms of 428 of

the Code of Criminal Procedure.

Copy of the judgment along with L.C.R. be sent down to the trial court at once.

Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

I agree.

(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.)

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